Citation Nr: 1036624
Decision Date: 09/28/10 Archive Date: 10/05/10
DOCKET NO. 07-36 140 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an initial compensable evaluation for bilateral
hearing loss
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
David S. Ames, Counsel
INTRODUCTION
The Veteran served on active duty from November 1965 to November
1968.
This matter comes properly before the Board of Veterans' Appeals
(Board) on appeal from a rating decision by the Department of
Veterans Affairs (VA) Regional Office in Atlanta, Georgia (RO).
The appeal is remanded to the RO via the Appeals Management
Center, in Washington, DC.
REMAND
VA is generally required to make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate the
claim. 38 U.S.C.A. § 5103A. This duty to assist includes the
conduct of a thorough and comprehensive medical examination.
Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Where the
available evidence is too old for an adequate evaluation of the
Veteran's current condition, VA's duty to assist includes
providing a new examination. Weggenmann v. Brown, 5 Vet. App.
281, 284 (1993).
In this case, the Veteran last underwent a comprehensive VA
examination of his service-connected bilateral hearing loss in
November 2005. In a November 2007 Appeal to the Board and a July
2010 hearing before the Board, the Veteran stated that his
bilateral hearing loss had increased in severity since November
2005. The Board therefore concludes that an additional VA
examination is needed to provide a current picture of the
service-connected bilateral hearing loss disorder at issue on
appeal. 38 C.F.R. § 3.327 (2009).
In addition, in the July 2010 hearing before the Board, the
Veteran stated that he had last had an audiological examination
one or two years before. He reported that following that
examination, the examiner told him that his hearing loss had
increased in severity and he was recommended hearing aids. The
medical records corresponding to this audiological examination
are not currently associated with the claims file. Accordingly,
an attempt must be made to obtain these records and any other
relevant medical records that are not currently associated with
the claims file.
Accordingly, the case is remanded for the following actions:
1. The RO must contact the Veteran and
request that he identify the names,
addresses, and approximate dates of
treatment for all VA and non-VA health
care providers who have treated or
examined him for his service-connected
bilateral hearing loss. An attempt must
be made to obtain, with any necessary
authorization from the Veteran, copies of
all pertinent treatment records identified
by him in response to this request which
have not been previously secured, to
specifically include the medical records
identified by the Veteran in the July 2010
hearing before the Board. All attempts to
secure this evidence must be documented in
the claims file. If, after making
reasonable efforts to obtain named
records, such records cannot be obtained,
the Veteran must be notified and (a) the
specific records that cannot be obtained
must be identified; (b) the efforts that
were made to obtain those records must be
explained; (c) any further action to be
taken by VA with respect to the claims
must be noted; and (d) the Veteran must be
notified that he is ultimately responsible
for providing the evidence. The Veteran
and his representative must then be given
an opportunity to respond.
2. The Veteran must be afforded an additional
VA audiological evaluation to determine
the current severity of his bilateral
hearing loss. All pertinent
symptomatology and findings must be
reported in detail. The claims file and a
copy of this Remand must be made available
to and reviewed by the examiner in
conjunction with the examination. Any
indicated diagnostic tests and studies
must be accomplished. Specifically, the
findings of puretone decibel loss at 1000,
2000, 3000 and 4000 Hertz, must be
numerically reported and speech
recognition must be derived using the
Maryland CNC Test. Any opinion provided
must include an explanation of the basis
for the opinion. If any of the above
requested opinions cannot be made without
resort to speculation, the examiner must
state this and specifically explain why an
opinion cannot be provided without resort
to speculation. The report must be typed.
3. The RO must notify the Veteran that it is
his responsibility to report for the
scheduled VA examination, and to cooperate
in the development of the claim. The
consequences for failure to report for a
VA examination without good cause may
include denial of the claim. 38 C.F.R. §§
3.158, 3.655 (2009). In the event that
the Veteran does not report for the
scheduled examination, documentation must
be obtained which shows that notice
scheduling the examination was sent to the
last known address. It must also be
indicated whether any notice that was sent
was returned as undeliverable. Copies of
all documentation notifying the Veteran of
any scheduled VA examination must be
placed in the Veteran's claims file.
4. The RO must then readjudicate the claim
and, thereafter, if the claim on appeal
remains denied, the Veteran and his
representative must be provided a
supplemental statement of the case. After
the Veteran has had an adequate
opportunity to respond, the appeal must be
returned to the Board for appellate
review.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).